SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1028 

CAF 14-01924 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND CURRAN, JJ. 

 

IN THE MATTER OF TORRENCE P. CURRY, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

LATOYA D. REESE, RESPONDENT-APPELLANT. 

 

ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT-APPELLANT. 

ALVIN M. GREENE, ATTORNEY FOR THE CHILD, BUFFALO. 

 

Appeal from an order of the Family Court, Erie County (Sharon M.

LoVallo, J.), entered October 3, 2014 in a proceeding pursuant to

Family Court Act article 6. The order, inter alia, awarded petitioner

sole custody of the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act

article 6, respondent mother appeals from an order that, inter alia,

awarded sole custody of the subject child to petitioner father.

Initially, we agree with the mother that Family Court failed to state

for the record that there was a sufficient change in circumstances to

warrant a determination whether a change in the existing custody

arrangement would be in the best interests of the child. 

Nevertheless, “this Court has the authority to independently review

the record” to ascertain whether the requisite change in circumstances

existed (Matter of Prefario v Gladhill, 90 AD3d 1351, 1352; see Matter

of Bedard v Baker, 40 AD3d 1164, 1165; see generally Matter of

Williams v Tucker, 2 AD3d 1366, 1367, lv denied 2 NY3d 705). 

Here, the evidence in the record establishes that the Erie County

Department of Social Services filed a neglect petition against the

mother, and that the court entered a finding of neglect against the

mother based on the conditions in her home. “[T]he adjudication of

neglect constituted a change in circumstances that warranted a

determination whether a modification of the custody arrangement set

forth in the [prior] joint custody order was in the best interests of

the child” (Matter of Christy S. v Phonesavanh S., 108 AD3d 1207,

1208; see Matter of Ze’Nya G. [Nina W.], 126 AD3d 566, 566; see also

Matter of Palmatier v Carman, 125 AD3d 1139, 1139-1140). “In view of

the foregoing, and despite the court’s failure to articulate any

specific findings to support [the conclusion] that a change in
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CAF 14-01924 

circumstances had been established, we find that the requisite change

in circumstances has been shown” (Prefario, 90 AD3d at 1353; see

Matter of Eastman v Eastman, 118 AD3d 1342, 1343, lv denied 24 NY3d

910; Matter of Casarotti v Casarotti, 107 AD3d 1336, 1337-1339, lv

denied 22 NY3d 852). 

We reject the mother’s further contention that the child’s best

interests are not served by awarding sole custody of the child to the

father. Although “[t]his Court has held that sibling relationships

should not be disrupted ‘unless there is some overwhelming need to do

so’ ” (White v White, 209 AD2d 949, 950, lv dismissed 85 NY2d 924; see

Salerno v Salerno, 273 AD2d 818, 819), “this rule is not absolute and

may be overcome where, as the record here shows, the best interest[s]

of each child lie[] with a different parent” (Matter of Delafrange v

Delafrange, 24 AD3d 1044, 1046, lv denied 8 NY3d 809 [internal

quotation marks omitted]). Here, the court properly concluded that it

is in the child’s best interests that she be separated from her

siblings (see Matter of Lowe v O’Brien, 81 AD3d 1093, 1095, lv denied

16 NY3d 713; Matter of Lightbody v Lightbody, 42 AD3d 537, 538, lv

denied 9 NY3d 1017; Matter of Seymour v Seymour, 267 AD2d 1053, 1053,

lv denied 95 NY2d 761). 

The mother further contends that the court was biased against

her. “A party claiming court bias must preserve an objection and move

for the court to recuse itself” (Matter of Baby Girl Z. [Yaroslava

Z.], 140 AD3d 893, 894; see Matter of Ashlyn Q. [Talia R.], 130 AD3d

1166, 1169), and the mother failed to do so here. Therefore, her

contention is not preserved for our review. In any event, “[t]he

record does not establish that the court was biased or prejudiced

against” the mother (Matter of Rasyn W., 270 AD2d 938, 938, lv denied

95 NY2d 766). 

Entered: December 23, 2016 Frances E. Cafarell

Clerk of the Court